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THE PASSING OF AN APPELLATE GIANT

[Posted December 30, 2014] The sad news reached me this morning of the passing of Judge Ruggero Aldisert, at the age of 95. Judge Aldisert was a Senior U.S. Circuit Judge of the Third Circuit Court of Appeals, and had retired this past summer.

I never got to meet Judge Aldisert, but he helped me on numerous occasions, through his wonderful book, Winning on Appeal, one of the NITA Practical Guide Series. If you’re an appellate lawyer, you have to read it; I keep my copy (2nd edition, 2003) in a small bookcase that’s right by my elbow, for easy reference.

Judge Aldisert wrote other books about the law and judging, but for me,Winning on Appeal is the next-best thing to an owner’s manual for a successful appellate practice. It offers excellent practical advice on briefwriting and oral advocacy. Sometimes I disagree with what’s in there; for example, I believe that his advice to “Preserve the issue [in the trial court] at all costs” is too broad, and there may be instances in which you may intentionally sacrifice an appellate issue in order to win the trial. But as a whole, the advice is dynamite.

I’ve often told the story that there’s an easy way to tell whether you’re hiring the right appellate lawyer: Go to his office and ask if you can borrow his copy of Aldisert. You’ll get two possible responses. The first is, “What’s an Aldisert?” If that’s what you hear, look at your watch and make a polite excuse before leaving. The only other possible response is, “No, you can’t borrow it; but I’ll let you look through my copy here in my office,while I keep an eye on you.” That’s your guy.

I can’t conclude this essay without quoting my favorite passage from the book. It’s part of a “litmus test” that reflects what appellate jurists think about a brief, based on how many issues are contained in it. The list, which Aldisert describes as “purely subjective guidelines for civil cases,” begins with three issues, and indicates that the judge’s reaction to such a focused brief is, “Presumably arguable points. The lawyer is primo.”

As the number of issues rises, the judge’s reaction correspondingly worsens. By six issues, the reaction is, “Probably no arguable points. The lawyer has not made a favorable initial impression.” But it goes on, to seven issues: “Presumptively, no arguable points. The lawyer is at an extreme disadvantage, with an uphill battle all the way.”

The list concludes with eight or more issues: “Strong presumption that no point is worthwhile.” The first edition of the book contained this irresistiblebon mot, which has for some unfortunate reason been excised from the second edition: “To the lawyer: Go home. Do not collect $200.”

Think about that the next time you think you just have to list seventeen assignments of error.